R v South Tyneside Metropolitan Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KEENE,LORD JUSTICE PILL |
| Judgment Date | 03 March 1995 |
| Judgment citation (vLex) | [1995] EWHC J0303-7 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 2501/94 |
| Date | 03 March 1995 |
[1995] EWHC J0303-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)
Before: Lord Justice Pill and Mr Justice Keene
CO 2501/94
MR K DE HAAN (instructed by Harris Rosenblatt & Kramer, London WC1R 4HE) appeared on behalf of the Applicant.
MR J BLAIR-GOULD (instructed by Legal Services Department, South Tyneside Metropolitan Borough Council, Town Hall, Westoe Road, South Shields, Tyne & Wear NE31 2SR) appeared on behalf of the Respondent.
MR JUSTICE KEENE: This is an application for judicial review seeking to quash a decision of the South
Tyneside Justices on 18th July 1994 when they refused
to stay proceedings in respect of summonses alleging offences under section 1(1)(a) of the Trade Descriptions Act 1968 by the Applicants. Informations alleging those offences had been laid by the South Tyneside Metropolitan Borough Council on 31st March 1994. The stay was sought before the Justices on the ground of abuse of process.
The charges themselves allege that on 20th March 1993 at Mill Garages, Boldon Business Park, West Boldon, Tyne and Wear, these Applicants, in the course of trade or business, had applied a false trade description to a motor vehicle, namely that Mill Garages had just brought in a consignment of ex-Rover management cars, which was likely to be taken as an indication that a Rover 216 SLi, registration K748 ABD, was an ex-Rover management car contrary to that provision of the 1968 Act. In essence, the charge was that the car had been described as an ex-Rover management car when in fact it had been used as a rental car by a car hire firm, Hertz Car Rentals.
The basic sequence of events so far as the process of the court proceedings was concerned was that the informations were laid on 31st March 1994 alleging these offences on 20th March 1993. There was then a hearing on 10th May 1994, which was adjourned for the Applicants to attend or be legally represented. On 17th May 1994 the Applicants consented to summary trial and 'not guilty' pleas were entered. On 26th June 1994 there was a pre-trial review, and on 18th July 1994 there was intended to be the trial of the matter.
On that date the Applicants by their counsel sought a stay on the basis that the prosecution would be an abuse of process, principally because of the delay before laying informations. It was argued that the delay was inordinate and inexcusable and was causing serious prejudice to the Applicants. It was also submitted that the prosecution would not be in the public interest.
In support of that application before the Justices the Applicants put before the Court a chronology of events. That revealed inter alia the following. On 20th March 1993 a Mr Harvey, who was the eventual complainant, visited these garage premises and agreed with the salesman, Mr Graham, to purchase the car. On 2nd April Mr Harvey found the service record and owner's handbook for the car under the carpet on top of the spare wheel in the boot. The documents revealed that the car had been previously used by Hertz Car Rentals. Mr Harvey and a companion then returned on that day to the garage to raise the matter with the salesman, Mr Graham. Mr Graham, however, had a day off, and Mr Harvey on that occasion spoke to the sales manager instead.
On 6th April Mr Harvey took the car into the garage, and this time he did speak to Mr Graham. He stated that he either wanted a reduction in price or a refund. The manager declined to concede either. Mr Harvey left, stating that he would be contacting the relevant department of the Local Authority, that is to say the Trading Standards Department. He did indeed do that, either that day or the next day. On 20th April a Mr Armstrong, one of the officers of the Trading Standards Department, visited the garage premises and spoke to Mr Robinson, the Branch Manager, requesting various documents.
At the hearing before the Justices the second Applicant, Mr Graham, gave evidence on the matter. He had been employed by the first Applicant, the company, at that time as a sales executive, and he remained in their employ until October 1993. His testimony was that he had no recollection of the transaction in question and that he first became aware of any court proceedings when he received a letter from the Trading Standards Officer in April 1994 seeking answers. (In an affidavit before this Court Mr Graham indicates that he may in fact have received the summons in this case before receiving that letter from the Trading Standards Department.) His testimony went on to indicate that he generally sold about 20 to 30 cars per month and dealt with some eight to ten customers per day, and his view was that he could not remember every transaction.
Evidence was also given by Mr Outhwaite, the Divisional General Manager for the first Applicant. He stated that he first received notice of an investigation on 21st March 1994. He said that he had had a phone call a few days earlier to set up an interview with the Trading Standards Officer and that a letter dated 24th March followed, asking questions and wanting answers by a few days later. His testimony went on to say how the Branch Manager of the company as of March 1993 had left the company at the end of August of that year and that the Sales Manager at the time had left in October 1993. He also added that, if a customer complained, the complaint would normally be drawn to the attention of the salesman concerned, which in this case would have been the second Applicant. He added further that the company had no documented complaints procedure.
Evidence was also given on behalf of the prosecution confirming that a complaint from Mr Harvey had been received on 6th April 1993. Mr Armstrong, a Trading Standards Officer, gave evidence that he visited the premises of the company on 20th April 1993, where he outlined the allegation. He also said that he took possession on that occasion of a number of copy documents relating to the alleged misdescription.
His evidence was that present on that occasion at the premises when he outlined the allegation were Mr Robinson, the Branch Manager of the garage, and someone from the company's head or regional office. He described it as a document gathering visit only, as part of an investigation into the complaint.
Another officer gave evidence about steps taken to obtain information from the previous keeper of the car, Hertz Rentals, and the company through whom the purchase by the first Applicant had been made. After numerous requests, a statement from Hertz had been received on 22nd October 1993. So far as the auction company was concerned, a telephone call had been made to that company on 28th April 1993, and on 5th August 1993 a statement had been requested from the auction company. A number of telephone calls chasing the statement were then made, but no statement had been received prior to the date when the informations had been laid on 31st March 1994. A response had finally been received by the Authority on 6th May of that year.
Dealing in more detail with the events shortly before the informations were laid, the evidence from the Borough Council at the hearing before the Justices was that on 15th March 1994 an officer had made an appointment to interview the first Applicant, the company. On 21st March that officer visited the premises to carry out a formal interview with Mr Outhwaite, but he apparently said on that occasion that on legal advice the company wanted the questions put in writing. On 24th March a Senior Trading Standards Officer wrote to Mr Outhwaite setting out the questions and asking for a reply within five days. No reply was received within that time or prior to the laying of informations on 31st March.
Before this Court the Clerk to the Justices, Simon James Anthony O' Hare, has sworn an affidavit in which he states that, at the conclusion of the evidence and submissions, he advised the Magistrates in open court as to the law in the following terms:
"A. The power to stay proceedings arises only when it is an abuse of the process of the Court if, either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been or will be prejudiced in the preparation or in the conduct of his defence by delay on the part of the prosecution which is unjustifiable.
B. The power is available only on the proper exercise of judicial discretion by the Court, and only in exceptional circumstances.
C. The object of this power is to ensure that there should be a fair trial according to law, which involves both fairness to the defendant and the prosecution.
D. The Court would not be using its discretion judicially if it were to dismiss these proceedings as a disciplinary measure against the prosecution."
The Justices then retired to consider their verdict. In due course they returned and refused the application for a stay.
Affidavits have been filed with this Court by the Justices. Those affidavits follow a common form. After reciting the advice given in open court by their Clerk, the Justices state that after retiring they found the following facts:
"A. A complaint had been made by the purchaser of a car from the first Applicant's garage in West Boldon on 20th March 1993, and the substance of that complaint had been raised with the company's...
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